Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] On 31 December 2025, Mr Horst Michael Schuster (the Applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act), alleging that he was unfairly dismissed by Too Easy Group Pty Ltd T/A Easy Glass Services (the Respondent) on 12 December 2025.

[2] The matter was listed for a preliminary Conference/Directions by telephone on Friday, 20 March 2026. The notice of listing issued to the parties on 17 March 2026 and requested that the parties write to my Chambers confirming their appearances for the Conference.

[3] The Respondent wrote to my Chambers on 18 March 2026 to confirm their appearances as required.

[4] The Applicant did not write to my Chambers to confirm his appearance.

[5] On the morning of 20 March 2026, my Associate wrote to the Applicant urgently seeking that he confirm his appearance for the Conference. Chambers did not receive any reply from the Applicant.

[6] The Respondent connected into the telephone Conference as required. My Associate made attempts to dial the Applicant into the Conference line using his mobile number, including at 2 minutes before the start time, at the Conference start time, 10 mins after start time and 15 mins after start time. Voice Messages were left on each occasion, requesting that the Applicant urgently contact Chambers or make himself available to be dialled into the Conference line.

[7] The Applicant failed to connect to the Conference line or otherwise contact Chambers on 20 March 2026.

[8] On that same date, a 'Non-Attendance Letter' was issued to the Applicant, requiring that he write to Chambers within 7 days providing an explanation for his non-attendance and reasons why his application should not be dismissed.

[9] No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [11] It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact him in relation to the Conference of 20 March 2026, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute his case and has taken no steps to do so.

• [13] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[14] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Schuster's application for failure to prosecute his case.

[15] Accordingly, the application is dismissed pursuant to section 587 of the Act.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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